Customer Agreement

By using the licensed Trakstar software (“Trakstar” or “Trakstar software”) the Customer acknowledges receipt of this document (“Agreement”) and understands its contents. Use of Trakstar shall imply that the Customer and Promantek, Inc. dba Trakstar (each a “Party” and collectively the “Parties”) agree on the deliverables, fees, Customer and Promantek, Inc. dba Trakstar responsibilities and confidentiality of Customer Confidential Information, and that both parties consent to be legally bound by all terms and conditions contained in this Agreement.

 

The initial term of this Agreement shall commence on the date of signing and shall continue to the End Date, one year later. Renewal is optional. Thereafter, this Agreement will automatically renew for additional successive one year terms unless Customer notifies Promantek, Inc. dba Trakstar in writing at least 60 days prior to the last day of the initial term or any Renewal Term of its intent to not renew. Either Party may notify the other party in writing at least (60) days prior to the last day of the current term of its intent not to renew.

 

A Trakstar Customer Experience Manager will contact the customer upon Agreement Begin Date. Trakstar Implementation and all associated services, including all implementation meetings and all employee/manager training, must be completed and scheduled by the Customer and Promantek, Inc. dba Trakstar within 120 calendar days following the Agreement Begin Date. The Agreement Begin Date will not be adjusted in the event of a customer delay. Promantek, Inc. dba Trakstar will provide a login to the Trakstar software to the Customer at the initial Implementation Kickoff meeting. Trakstar license renewal dates commence one year from the Agreement Begin Date, regardless of implementation delays from the Customer side (e.g. internal Customer delays or extended internal discussions to decide upon customization options, etc.)

 

Payment to Promantek, Inc. dba Trakstar

Payment Terms: Due at Agreement Beginning Date, US Dollars, Net 30 Days

 

Trakstar License Count

A Trakstar Software License must be purchased for every employee, manager, and contractor entered into the Trakstar database. Each individual shall be referred to as an “employee” and counted for pricing purposes regardless of whether or not they are appraised or complete a self-appraisal. If an employee or contractor leaves the Customer’s organization, the license may be re-assigned.

 

Trakstar Subscription

The Trakstar subscription will automatically renew at the end of each billing cycle unless cancelled contacting our sales or customer support team. Customers may cancel auto-renewal on your Subscription at any time, in which case the Subscription will continue until the end of that billing cycle before terminating. If a Customer terminates the Agreement if an annual fee has been paid, there will be no refund for the remainder of the term.

 

Additional Users

Additional users above the original subscription tier window may be added to the subscription fee during the initial term and subsequent renewal periods. The fee for additional users will be the rate on Trakstar’s website: www.trakstar.com/pricing at the time of requesting additional users, at which point, your subscription will renew at the higher subscription tier window. Customer is required to inform Promantek, Inc when the number of added users exceeds the current pricing tier during the Agreement period. Promantek reserves the right to issue an adjusted invoice at any time.

 

Taxes

Taxes are generally not applicable. Fees do not include taxes or duties. If Promantek, Inc. dba Trakstar is required to pay or collect any federal, state, local, value added, tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Promantek, Inc. dba Trakstar net income, then such taxes and/or duties shall be billed to and paid by Customer immediately upon receipt of invoices and supporting documentation for the taxes and duties charged.

Promantek, Inc. dba Trakstar Deliverables

License

Promantek, Inc. dba Trakstar grants to Customer and its Contractors a non-exclusive, non-transferable, term-based, right-to-use license to access and execute Trakstar software on supported browsers which are listed on Exhibit A for internal business purposes and for testing, training and other non-production purposes.

 

Authorized Users

Customer shall use the Trakstar software for internal business operations including affiliated entities that control, or are controlled, by the Customer (“Affiliated Entities). Customer shall not permit Trakstar to be used by or for the benefit of anyone other than the Authorized Users. Customer shall not have the right to re-license or sell rights to access and/or use Trakstar, or to transfer or assign rights to access or use Trakstar, except as provided in Section 11.

 

Intellectual Property

Customer may not modify, translate, reverse engineer, de-compile, or create derivative works based upon Trakstar software. The Customer agrees to use Trakstar in a manner that complies with all applicable laws including intellectual property and copyright laws.

 

Title

The proprietary rights embodied in the installed Trakstar software system operating on Promantek, Inc. dba Trakstar or the Customer servers are the sole and exclusive property of Promantek, Inc. dba Trakstar

 

Hold Harmless

Promantek, Inc. dba Trakstar represents and warrants that Promantek, Inc. dba Trakstar has the authority to license Trakstar. Promantek, Inc. dba Trakstar and shall defend, indemnify, and hold the Authorized Users harmless from any and all claims, damages arising out of (1) the lack or right of authority to license Trakstar, or (2) infringement of any copyright, trade secret, or patent known to Promantek, Inc. dba Trakstar as the result of a current, unmodified copy of Trakstar; provided Promantek, Inc. dba Trakstar is promptly notified in writing of any such suit or claim. Furthermore, the Customer must permit Promantek, Inc. dba Trakstar to defend, compromise, or settle any such suit or claim and provide all available information and reasonable assistance to enable Promantek, Inc. dba Trakstar to do so.

 

Audit

Promantek, Inc. dba Trakstar reserves the right to audit the Customer to ensure license use compliance.

 

Technical Support

Support is included with the Trakstar License. This includes but is not limited to interim and code correction releases within the release version and major upgrades. The Customer is entitled to telephone support for Trakstar-related questions during normal business hours and days, Monday-Friday 9:00 AM – 8:00 PM US EST. The Customer may also e-mail questions to support@trakstar.com, with response within 1 business day.

 

Trakstar Hosting Service

Promantek, Inc. dba Trakstar represents that it identifies Amazon EC2, a web hosting service, as its provider. Amazon provides a reliable environment for Trakstar. Promantek, Inc. dba Trakstar represents that Amazon provides a reliable environment for Trakstar. Promantek, Inc. dba Trakstar represents that the Trakstar application and data is strives for 99.9% up time and Promantek, Inc. dba Trakstar adheres to best practices when it comes to security and confidentiality.

 

Data Backup

Promantek, Inc. dba Trakstar represents that it backs up all Trakstar data every day for disaster recovery purposes, and that it retains seven (7) days of full daily backups plus twelve (12) months of monthly backups. Backups are used for disaster recovery procedures, not recovery from user error.

 

Outages

Promantek, Inc. dba Trakstar shall strive to provide maximum availability but will not be held accountable for outages beyond its reasonable control. Promantek, Inc. dba Trakstar will use reasonable efforts to notify the Customer in advance regarding possible outages. Promantek, Inc. dba Trakstar represents that scheduled maintenance of the service is after 8:00 p.m. PST for minor upgrades and fixes. Promantek, Inc. dba Trakstar will use reasonable and good faith efforts to schedule maintenance between the hours of 8:00 PM EST – 8:00 AM EST. Promantek, Inc. dba Trakstar will give Customer as much notice as reasonably possibly of any emergency procedures outside of scheduled maintenance. Promantek, Inc. dba Trakstar will give Customer 3 weeks notice for scheduling major upgrades.

Customer Responsibility 

Internet and Browser

The Customer shall be responsible for providing, at its own expense and risk, all Internet devices, supported browsers, Internet connections, and Internet Service Providers.

 

Principal Administrator

The Customer shall designate one employee as the Principal Administrator to communicate with Promantek, Inc. dba Trakstar regarding technical issues. The Customer may change the Principal Administrator from time to time by written notice to Promantek, Inc. dba Trakstar’s contact person. All notices and communications from Promantek, Inc. dba Trakstar shall be directed to the Customer.

 

Cooperation

Customer acknowledges that certain services and obligations of Promantek, Inc. dba Trakstar may be dependent on Customer providing certain data, information, or assistance to Promantek, Inc. dba Trakstar from time to time. Customer acknowledges that such cooperation may be essential to the performance of services by Promantek, Inc. dba Trakstar. The Parties agree that any delay or failure by Promantek, Inc. dba Trakstar to provide services hereunder which is caused by Customer’s failure to provide timely Cooperation reasonably requested by Promantek, Inc. dba Trakstar shall not be deemed to be a breach of Promantek, Inc. dba Trakstar’s performance obligations under this Agreement.

Termination 

Termination for Cause

If either Party materially fails to comply with any of the material terms and conditions of this Agreement, including without limitation the payment of any undisputed subscription license fee or reimbursement due and payable under this Agreement, the non-defaulting Party may terminate this Agreement upon thirty (30) days written notice to the defaulting party specifying such breach, unless within the period of such notice, all breaches specified therein have been remedied. Notwithstanding the foregoing, Promantek, Inc. dba Trakstar shall have the right to terminate this Agreement immediately upon giving notice to Customer if Customer becomes insolvent, assigns or attempts to assign its business assets for the benefit of creditors, institutes or has instituted against it proceedings in bankruptcy, or dissolves or liquidates the business. In the event that Promantek, Inc. dba Trakstar terminates this Agreement for cause, Promantek, Inc. dba Trakstar will retain all subscription license fees already paid to Promantek, Inc. dba Trakstar. These fees will not be refunded to Customer. In the event Customer terminates this Agreement for cause, the prorated license fee for the paid portion of the subscription will be refunded to Customer. Upon termination, Customer must immediately discontinue use of and destroy all copies of software and documentation in its possession.

 

Export Customer Data

If requested, by Customer at any time during the term of this Agreement or within 10 business days after the effective date of termination of this Agreement, Trakstar (on behalf of the customer) will export Customer data into a .csv. Following Customer’s successful receipt of Customer Data, Customer shall confirm the same to Promantek, Inc. dba Trakstar in writing after which time Promantek, Inc. dba Trakstar shall delete Customer Data, unless legally prohibited (in which case, Promantek, Inc. dba Trakstar may save a copy of the Customer Data, but may not access or use same), that is in it’s possession or under its control and Promantek, Inc. dba Trakstar shall have no further obligation regarding same. In the event that Customer does not request desired data prior to the disabling of Trakstar, Promantek, Inc. dba Trakstar shall have the right to delete Customer’s content and Promantek, Inc. dba Trakstar shall have no further obligation.

 

Continuing Obligations

The following obligations shall survive the expiration or termination hereof: (1) any and all warranty disclaimers, limitations of liability and indemnities granted by either Party herein, (2) any covenant granted herein for the purpose of determining ownership of, or protecting, the proprietary rights, including without limitation, the confidential information of either Party, or any remedy for breach thereof, and (3) the payment of any undisputed taxes, duties, or any monies due.

 

Ownership and Confidentiality

Ownership

Title to the proprietary rights embodied in the Trakstar software system shall remain in and be the sole and exclusive property of Promantek, Inc. dba Trakstar

 

Confidentiality of Agreement

Customer acknowledges that the terms and conditions of this Agreement are considered confidential but Customer shall have the right to disclose the terms of this agreement to Customer’s insurance companies as well as to Customer’s legal, financial, and accounting advisors. Customer shall also be able to disclose this Agreement if such disclosure: (1) is in response to a valid order of a court or other government body; (2) is otherwise required by law, order, subpoena, or other document request of a court, administrative agency or other governmental body; or (3) is otherwise necessary to establish rights and enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.

 

Confidentiality of Trakstar Software

Customer acknowledges that the Trakstar software embodies logic, design, and coding methodology, which constitute valuable confidential information that is proprietary to Promantek, Inc. dba Trakstar and its licensors. Customer shall safeguard the right to access the Trakstar software system using the same standard of care that Customer uses for its Customer Confidential Information (as defined below), but in no event less than reasonable care.

 

Confidentiality of Customer Information

All confidential and proprietary information of Customer and its Authorized Users and associated appraisals disclosed to Promantek, Inc. dba Trakstar in connection with the performance of this Agreement shall be held as confidential by Promantek, Inc. dba Trakstar and shall not, without prior written consent of Customer, be disclosed other than for the performance of this Agreement. Promantek, Inc. dba Trakstar shall safeguard the confidentiality of employee names and associated appraisals using the same standard of care that Promantek, Inc. dba Trakstar uses for its own confidential information, but in no event less than reasonable care. The foregoing obligation shall not apply to any Customer Confidential Information which: (1) is known, or hereafter becomes, through no act of failure to act on the part of Promantek, Inc. dba Trakstar, generally known or available; (2) is known by Promantek, Inc. dba Trakstar at the time of receiving such information as evidenced by its written records; (3) is hereafter furnished to Promantek, Inc. dba Trakstar by a third party, as a matter of right and without restriction on disclosure; (4) is independently developed by Promantek, Inc. dba Trakstar as evidenced by its written and dated records and without any breach of this Agreement; or (5) is the subject of a prior written permission to disclose provided by Customer. Further notwithstanding the forgoing, disclosure of Customer Confidential Information shall not be precluded if such disclosure: (1) is in response to a valid order of a court or other government body of the United States; (2) is otherwise required by law; However, if Promantek, Inc. dba Trakstar is compelled by the circumstances set forth in the preceding sentence to disclose Customer Confidential Information, it shall provide Customer with prior notice of such compelled disclosure to the extent legally permitted.

Limiting the Use of Personal Data

Trakstar employs role-based security based on an organizational hierarchy in the software.  The identified customer-appointed system administrator for the Trakstar system has the ability to change organizational structure, thus increasing or decreasing visibility of data within the system.

Trakstar will not use personal data for any means other than support of the Trakstar system, as requested by the identified system administrator or his/her designees.

If an individual does not know his/her organization’s identified system administrator, please send an email to support@trakstar.com for assistance.

 

Warranties 

Operational Warranty

During the term thereof, Promantek, Inc. dba Trakstar, warrants that the Trakstar software system will conform to, operate, and be accessible through the Internet (“Operational Warranty”).

 

Suitability and Liability

Except as otherwise set forth in this Agreement, Promantek, Inc. dba Trakstar, does not warrant that the Trakstar software or the hosted service will be uninterrupted or error-free or meet any particular criteria, performance, quality, accuracy, purpose, or need assumed by the Customer. In no event shall Promantek, Inc. dba Trakstar, or the Customer be liable to the other for any indirect or consequential damages.

 

Remedy

Promantek, Inc. dba Trakstar’s sole and exclusive liability for breach of the Operational Warranty shall be the replacement of service for any time the Promantek, Inc. dba Trakstar Application Server and/or the Trakstar software does not conform to the warranted specifications. When replacement of service is not possible, Promantek, Inc. dba Trakstar’s entire, cumulative liability for money shall be limited to that portion of the subscription license fees paid when the Promantek, Inc. dba Trakstar Application Server and/or Trakstar software does not conform to the warranted specifications.

 

Warranty Disclaimers

Except for the Operational Warranty and any other representations and warranties provides in this Agreement, Promantek, Inc. dba Trakstar, does not make any warranty of any kind, express or implied, and Promantek, Inc. dba Trakstar, specifically disclaims the implied warranties of title, noninfringement, merchantability, fitness for a particular purpose, systems integration, and data accuracy. Some states do not allow disclaimers so the above limitation may not apply. Customer acknowledges that no representations other than those contained in this agreement have been made respecting the Trakstar software system or services to be provided in this Agreement, and that the Customer has not relied on any representation not expressly set out in this Agreement. Further, Customer acknowledges and agrees that the Internet is not established or maintained by Promantek, Inc. dba Trakstar, that Promantek, Inc. dba Trakstar has no control over the Internet, that Promantek, Inc. dba Trakstar, is not liable for the content or loss of any data transferred either to or from Customer via the internet or stored by the Customer and that Promantek, Inc. dba Trakstar, is not liable for the discontinuance of the operation of any portion of the Internet or possible regulation of the Internet which might restrict or prohibit the operation of the Trakstar software system.

 

Damages

Limitation of Damages

Promantek, Inc. dba Trakstar’s entire, cumulative liability for money arising out of this agreement shall be limited to that portion of the subscription license fees paid when the Trakstar software system does not conform to the specifications during the material breach of this Agreement by Promantek, Inc. dba Trakstar

 

Disclaimer of Incidental and Consequential Damages

In no event shall either Party be liable to the other under any theory including contract and tort (including negligence and strict products reliability) for any indirect, special or incidents or consequential damages, even if the party causing such damages has been advised of the possibility of such damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply.

 

Arbitration 

Process

Except for the actions to protect Proprietary Rights and to enforce the arbitrator’s decision hereunder, and for complaints with specific relation to Promantek’s commitments under the EU-US Privacy Shield Framework, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Denver, CO. The arbitrator shall apply the laws of the State of Colorado to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement.

 

Notice 

Contact

All notices and communications to Promantek, Inc. dba Trakstar shall be directed to:

 

Promantek, Inc. dba Trakstar

911 E. Pike St., Suite 333

Seattle, WA 98122

877-489-5651

accounting@trakstar.com

 

Notices by Personal Delivery and Postal Mail

All notices given in writing shall be effective when either served by personal delivery or by certified or registered mail. To be effective, all such notices shall be addressed to the contact persons of the parties at their respective addresses as set forth above, or to such other addresses as either part may later specify by written notice.

 

Notices by E-mail

Notwithstanding the above provisions regarding notices by personal delivery, postal delivery, and electronic transmission, an electronic mail message sent by one party to the other shall be deemed to constitute an effective notice hereunder only if (1) the electronic mail message notice prominently states that it is being given under this Agreement and requests an e-mail response acknowledging receipt; and (2) the responding electronic e-mail message (a) clearly refers to the specific e-mail message to which it is responding, and (b) includes a copy of such text of such message. Further, to be effective, all such notices shall be addressed to the contact persons of the parties at their respective e-mail addresses as set forth above, or to such other e-mail address as either party may later specify by written notice.

 

Governing Law

State

This Agreement shall be construed under the laws of the State of Colorado without regard to its principles of conflicts of law.

 

Assignment

Customer Assignment

Customer shall not assign this Agreement or any right of interest under this neither Agreement, nor delegate any work or obligation to be performed under this Agreement, without Promantek, Inc. dba Trakstar’s prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.

Promantek, Inc. dba Trakstar Assignment

Promantek, Inc. dba Trakstar’s rights under this agreement may be assigned as part of a sale or transfer of Promantek, Inc. dba Trakstar’s business or assets without the Customer’s prior approval.

 

Enforcement

The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party hereafter to enforce any provision hereof.

 

Entire Agreement

Understanding

This Agreement constitutes the entire understanding of the parties with Respect to the subject matter of this Agreement and merge all prior communications understandings, and agreements. This Agreement may be modified only by written agreement signed by the Parties.

 

Force Majeure

Web Services

Neither Party shall be liable for any delays or failure to perform any obligation under this Agreement caused by war, fire, flood, accident, act of God, strikes, or other differences beyond the reasonable control of the Parties. In the event that either Party is unable, due to any of the foregoing contingencies, to fulfill its obligations under this Agreement, such party shall be excused for 30 days from performance same to the extent such contingency exists and will use commercially reasonable efforts to remedy any such contingency. An invoice will be sent to your organization that will be due at the agreement begin date.

 

EU-US Privacy Shield

Promantek complies with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Union to the United States.  Promantek has certified to the Department of Commerce that it adheres to the Privacy ShieldPrinciples.  If there is any conflict between the terms in this privacy policy and the Privacy Shield Principles, the Privacy Shield Principles shall govern.  To learn more about the PrivacyShield program, and to view our certification, please visit https://www.privacyshield.gov/. To view our participation status, please visit https://www.privacyshield.gov/participant?id=a2zt000000000xSAAQ.

In compliance with the Privacy Shield Principles, Promantek commits to resolve complaints about our collection or use of your personal information.  Individuals in the European Union (EU) with inquiries or complaints regarding our Private Shield policy should first contact Promantek at:

support@promantek.com

Promantek has further committed to cooperate with EU data protection authorities (DPAs) and comply with the advice given by such authorities with regard to unresolved Privacy Shield complaints concerning human resources data transferred from the EU in the context of the employment relationship. If timely acknowledgment of your complaint is not received from us, or if we have not addressed your complaint to your satisfaction, please contact the EU DPAs for more information or to file a complaint.  The services of EU DPAs are provided at no cost to you.

Promantek does not disclose personal information to third parties, unless required to do so in response to a lawful request by public authorities, including to meet national security or law enforcement requirements. In cases of onward transfer to third parties of data of EU individuals received pursuant to the EU-US Privacy Shield, Promantek is potentially liable. Individuals have the right to access their personal data as long as a.) the individual is in good standing with their organization b.) the organization is a customer in good standing with Promantek. Individual personal data is accessible by the identified, customer-appointed system administrator of the Trakstar system (contact support@trakstar.com to identify your system administrator.) Promantek is subject to the investigatory and enforcement powers of the Federal Trade Commission (FTC). Individuals have the possibility, under certain conditions, to invoke binding arbitration before a Privacy Shield Panel.